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Healthcare funding in the real world

Charles Foster,
Outer Temple Chambers,
London WC2

This article was first published in the New Law Journal and is reproduced by kind permission of the author and publisher

A medico-legally fascinating collision has occurred. Its reverberations will be felt in the labyrinthine corridors of clinical governance, in NHS Trust board rooms, in the disciplinary committees of the GMC, and eventually in the Strand.

The collision is between the National Institute for Clinical Excellence (NICE) on the one hand, and the Royal College of Psychiatrists and the British Geriatrics Society (“the medical societies”) on the other. The medical societies sought NICE endorsement of donepezil, galantamine, rivastigmine and memantine (“the drugs”) which are licensed for the treatment of Alzheimer’s disease. The effect of NICE endorsement would be to require NHS bodies to pay for the drugs if they were prescribed. NICE said no.

The medical societies did not simply roll over. They issued a joint and splendidly truculent statement designed “to support clinicians in preparing to meet their duties and responsibilities as doctors while implementing this flawed [NICE] guidance, and will also help healthcare organisations avoid unlawful discrimination.” This is fighting talk. To cut a long and pharmacologically complex story short, the medical societies think that proper treatment of many patients will require prescription of the drugs. They note that the first duty of a doctor, according to the GMC, is to the patient – not to the Trust, not to the budget, and not, even, to the other patients whose treatment may be affected by the prescription of costly drugs to patients ahead of them in the funding queue. In its brand new document Good Medical Practice (2006) the GMC is quite explicit: “…. you must make the care of your patient your first concern….”

The medical societies’ implicit threat is clear: if it is in the patient’s best interests to have the drug, but a doctor decides (no doubt with the enthusiastic support of the Trust accountants) to follow the NICE guideline, that doctor should fall foul of the GMC.

NICE inserted a woolly clause into its guidance in an attempt to avoid this stand-off: It says: “The guidance does not….override the individual responsibility of healthcare professionals to make decisions appropriate to the circumstances of the individual patient, in consultation with the patient and/or guardian or carer.” But the clause does not defuse the conflict. If the Trust is not (as the NICE guidance says it is not) obliged to pay for the drugs, what is the extent of the obligation of a doctor who feels that the drugs are necessary in a particular patient? Is he obliged to petition the Trust for funding? Is he obliged to offer his resignation if the funding is not forthcoming? And what of the doctors on the GMC register who sit on the Trust committees that decide whether or not a clinician’s petition should be granted? If they say no, when there are no reasons to doubt the assessment that it is in the patient’s best interests to have them, are they liable to be hauled before the GMC?

And what is the position in civil litigation? Would a doctor be Bolam-negligent if he let the financial considerations that lie behind the NICE guidance trump the best interests of the patient? Is there a responsible body of psychiatrists or geriatricians who would ignore the guidance given by their ruling professional bodies (the medical societies and the GMC) in favour of guidance given by a body (NICE) whose main concern is cost-effectiveness rather than individual patient benefit?

These are old questions posed in a new and acute way. There is an infinite amount of suffering in the world, and a finite amount of money to spend on its mitigation. It was always so, and will always be so. These issues have found their way to the courts before – notably in the Herceptin litigation (R (on the application of Ann Marie Rogers) v Swindon NHS Primary Care Trust [2006] 1 WLR 2649 (CA) and the Yvonne Watts case (R (on the application of Yvonne Watts) v (1) Bedford Primary Care Trust (2) Secretary of State for Health, Case C-372/04 (ECJ)). Historically the English courts have washed their hands of the real, hard decision-making in the realm of resource-allocation, saying that bodies like NICE and the Trusts are better placed than they are to decide how money should be spent. But bold and principled stances like the one taken by the medical societies might make it more difficult for the judges to dodge the nasty questions.

Perhaps it is time, too, for the GMC to abandon its well-meaning but rather naïve statements about the doctor’s primary duty. Everyone knows that in the real, messy world of priority-juggling, where one man’s treatment is another man’s denial of treatment, the duty to one patient cannot be considered in isolation from the duty to all other patients.